One of the most widely used and accepted methods for establishing trademark infringement is to conduct a likelihood of confusion survey among the relevant consumer population. Survey evidence in trademark cases can be a powerful and persuasive piece of evidence. It...
In the recent TTAB decision (Omaha Steaks International, Inc. v. Greater Omaha Packing Co., Inc., Consolidated Opposition No. 91213527 and Cancellations Nos. 92059629 and 92059455), Applied Marketing Science, Inc. Chairman Robert Klein provided rebuttal testimony on...
In the end, a consumer survey helped carry the day for Booking.com. The matter, Booking.com B.V. v. Matal, was interesting in that plaintiff filed a civil action challenging the TTAB’s finding that the mark “BOOKING.COM” is generic for travel agency services and hotel...
Before commissioning a trademark dilution survey, plaintiffs must first establish that its senior mark is famous. One of the most widely used and accepted methods for establishing fame is to conduct a fame survey among the relevant consumer population. In Navajo...
In Milk Street Cafe, Inc. vs. CPK Media, LLC, the plaintiffs claimed that their “Milk Street Cafe” trademark had acquired secondary meaning and that CPK’s use of the “Christopher Kimball’s Milk Street” mark was likely to cause confusion. U.S. District Judge Denise J....
As a follow-up to our webinar, “Survey Evidence in Intellectual Property (and other) Litigation,” Applied Marketing Science answers a few questions about surveys for intellectual property cases. Q. What is the difference between the Squirt survey and Eveready survey...
Recently in the Middle District of Florida (8:15-cv-00990-SDM-TGW), United States District Judge Steven D. Merryday granted the motion for summary judgment by defendant Barker Boatworks, LLC, after having found that plaintiff Yellowfin Yachts, Inc. failed to show...
Recently in the Eastern District of North Carolina (5:14-CV-217-BO), United States District Judge Terrence W. Boyle ordered Walmart Stores to disgorge to Variety Stores, Inc. over $32,000,000 in profits after having previously found Walmart to have willfully infringed...
A November 13, 2015 TTAB decision (Dan Foam ApS v. Innocor, Inc., Cancellation No. 92054201 resulted in the cancellation of the Bodipedic and design trademark based on a likelihood of confusion with the petitioner’s Temper-pedic design mark. The Bodipedic mark had...
The Supreme Court ruled in B&B Hardware, Inc. v. Hargis Industries that a TTAB ruling can have (in certain cases) a “preclusive effect” on subsequent actions in federal court (see earlier blog entry here.) Some commentators had expected that this would...
The recent decision by the Ninth Circuit in MultiTime Machine, Inc. v. Amazon.com, Inc. could spell the beginning of the end of “initial interest confusion” as a cause of action in internet commerce cases. In this particular case, Amazon did not sell the watches made...
A recent Trademark Trial and Appeal Board (TTAB) decision in the matter of Overstock.com, Inc. v. J. Becker Management rejected Overstock.com’s opposition to the registration of this mark: Overstock.com had complained that the registration would cause confusion with...
John Welch blogged about the TTAB’s decision to sustain the opposition to registration of the mark THE HOUSE THAT JUICE BUILT (and a related design mark) for various baseball related items. The Board found that both marks were likely to cause dilution-by-blurring of...
A 2015 article published by Shari Diamond and David Franklyn reports the results of a survey(!) of trademark attorneys on the role that surveys play in the ultimate resolution of a case. They note that a “consumer survey that measures consumer confusion is an...
The Court of Appeals for the Federal Circuit (CAFC) has affirmed the TTAB’s ruling that NOPALEA is merely descriptive when used for a dietary supplement that contains Nopal juice. (John Welch blogs about the decision here.) TriVita (the applicant) contended that the...
The 2015 Supreme Court ruling in B&B Hardware, Inc. v. Hargis Industries means that the Trademark Trial and Appeal Board (TTAB) will get a lot more attention and resources than they have in the past. Previously, the TTAB was often viewed as nothing more than a...
A recently decided case in the Middle District of Florida (Pods Enterprises v. U-Haul International) showed how the lack of survey evidence can seriously weaken a claim that a trademark is generic. Pods sued U-Haul for infringement of its federally registered “PODS”...